In 2020, the Texas Supreme Court will re-evaluate a lower court ruling to determine if the Electric Reliability Council of Texas is entitled to government immunity. In the lawsuit, bankrupt power plant owner Panda Power Generation Infrastructure Fund LLC debates that immunity should not extend to ERCOT because it will "destabilize" the state's competitive energy market.

LPCH partner David Coale says that ERCOT’s structure is analogous to the Financial Industry Regulatory Authority, in that ERCOT exists because of Texas law but isn't a state agency, just as FINRA exists because of federal securities laws but isn't a federal agency.

"It's a tough question, and there's not a lot of guidance," he said. "The Texas Supreme Court could just flush it, but they do take a lot of immunity cases."

The case is In re: Panda Power Infrastructure Fund LLC dba Panda Power Funds et al., case number 18-0792, in the Supreme Court of Texas.

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